United States District Court, D. New Jersey
J.Q. and S.B., individually and on behalf of I.Q., Plaintiffs,
WASHINGTON TOWNSHIP SCHOOL DISTRICT, Defendant
For J.Q. and S.B., Plaintiffs: Amelia Carolla, Esq., FREEMAN CAROLLA REISMAN & GRAN LLC, Haddonfield, NJ.
For Washington Township School District, Defendant: William S. Donio, Esq., COOPER LEVINSON, P.A., Atlantic City, NJ.
JEROME B. SIMANDLE, Chief United States District Judge.
This matter comes before the Court on Defendant Washington Township School District's (" Defendant" or " the District" ) motion to dismiss for lack of subject matter jurisdiction based on Plaintiffs' purported failure to exhaust administrative remedies. [Docket Item 8.] In this action, Plaintiffs J.Q. and S.B., individually and on behalf of their daughter, I.Q. (collectively, " Plaintiffs" ), allege that Defendant discriminated against their 13 year-old daughter, an eighth grade student with Attention Deficit Hyperactivity Disorder (" ADHD" ), on the basis of disability by failing to provide a Section 504 plan in violation of the Americans with Disabilities Act (" ADA" ), Section 504 of the Rehabilitation Act (" Section 504" ), and the New Jersey Law Against Discrimination (" NJLAD" ). Defendant argues that the exhaustion requirement under the Individuals with Disabilities Act (" IDEA" ) applies to Plaintiffs' claims even though they do not assert a cause of action under the IDEA. Because Plaintiffs concede that they failed to exhaust the IDEA's administrative remedies, Defendant's motion turns on whether Plaintiffs seek relief which is available under the IDEA and whether the IDEA's exhaustion requirements apply to their non-IDEA claims. For the reasons discussed below, the Court will grant Defendant's motion to dismiss on exhaustion grounds.
The Court accepts as true the following facts from Plaintiffs' Complaint for the purposes of the instant motion to dismiss. I.Q. is a 13 year-old eighth grade student in the Washington Township School District. (Compl. [Docket Item 1] ¶ 12.) I.Q. was diagnosed with ADHD in April, 2011. (Id. ¶ 13.) ADHD is an impairment which causes I.Q. to have " difficulty concentrating, paying attention, thinking clearly, focusing, staying organized, keeping track of things and remembering to complete her work, to bring her completed work to school, and to finish her work." (Id.)
During the 2012-2013 school year, when I.Q. was in sixth grade, Plaintiffs requested that the District conduct an evaluation of I.Q.'s alleged disability. (Id. ¶ 14.) The District did not conduct a " full child team evaluation" as requested. (Id. ¶ 15.) Instead, the District determined that I.Q.'s
needs could be met through an Intervention and Referral Service Plan (" I& RS Plan" ) -- a state program for students who are " experiencing learning, behavior or health difficulties and to assist staff who have difficulties in addressing pupils' learning, behavior or health issues." (Id. ¶ 16.) The I& RS Plan recognized I.Q.'s need for assistance with organization and late or missing work. (Id. ¶ 17.) The Plan granted certain accommodations like permitting I.Q. to return to her locker to retrieve missed work, use a binder to help with organization, and use an assignment book signed by teachers. (Id.)
Despite these accommodations, I.Q. continued to struggle in school and some teachers did not follow the I& RS Plan. (Id. ¶ 19.) I.Q.'s grades were reduced if she did not turn in work on time. (Id. ¶ 18.) I.Q.'s teachers informed Plaintiffs that I.Q. was " having trouble staying on task and on topic during class." (Id. ¶ 21.)
During the 2013-2014 school year, when I.Q. was in seventh grade, her difficulties with organization and attention continued. (Id. ¶ 22.) On September 22, 2014, Plaintiffs again requested that the District " evaluate [I.Q.] in areas of suspected disability to determine her eligibility for services by a [sic] way of a 504 Plan." (Id. ¶ 24.) On October 8, 2014, Plaintiffs attended a meeting with the District, but the necessary staff was not present to determine I.Q.'s need for a Section 504 Plan. (Id. ¶ 25.) The District declined to conduct an evaluation, finding that I.Q.'s grades were good and she could not have a disability. (Id.) A teacher at the meeting stated that in her 25 years of experience, she had not encountered a student with ADHD who needed accommodations. (Id.)
After the District declined Plaintiffs' request for an evaluation, Plaintiffs engaged a neuropsychologist, Dr. Sarah Allen Levin, to evaluate I.Q. (Id. ¶ 26.) Dr. Levin found that I.Q. has " difficulty organizing her materials and regulating her emotions." (Id.) I.Q's " scores in the areas of working memory represented a relative weakness in her cognitive profile," which combined with her ADHD, negatively impacted her ability to learn. (Id.) Dr. Levin recommended that I.Q. be provided a Section 504 Plan, including but not limited to, the following accommodations: permit I.Q. to have objects to manipulate to increase her attention; grant I.Q. additional time to submit homework assignments; assist I.Q. with organizational skills; develop a plan for I.Q. to receive feedback from her teachers regarding her organizational skills; and formulate and monitor a plan to help I.Q. remember her homework assignments. (Id.) I.Q.'s parents provided the District with a copy of Dr. Levin's evaluation on November 18, 2014 and again requested a Section 504 Plan. (Id. ¶ 27.)
On December 8, 2014, Plaintiffs met with the District to discuss I.Q.'s eligibility for a Section 504 Plan. (Id. ¶ 28.) Plaintiffs allege that the District decided to decline I.Q. a Section 504 Plan even before the meeting began. (Id.) Most of the attendees at the meeting had not been provided and had not read Dr. Levin's evaluation. (Id.) The only teacher in attendance noted I.Q.'s difficulties with organization which resulted in " significantly lower" grades. (Id.) The District determined that I.Q. did not need a Section 504 Plan because her medications were working and her grades were high. (Id.)
Plaintiffs allege that, to date, the District has not provided I.Q. the accommodations she needs to access her education. (Id.)
B. Procedural history
Plaintiffs filed this action on December 15, 2014 asserting claims against the District for violations of the ADA, Section 504,
and the NJLAD. Plaintiffs seek compensatory education and compensatory damages and an order directing the District to provide I.Q. with a Section 504 plan. Plaintiffs also seek expert and attorney's fees. Defendant filed the instant motion to dismiss on January 22, 2015. [Docket Item 8.] Plaintiffs filed opposition [Docket Item 10] and Defendant filed a reply [Docket Item 11].
III. STANDARD OF REVIEW
Under Rule 12(b)(1), a defendant may move to dismiss on the grounds that the court lacks subject matter jurisdiction over the dispute. Fed.R.Civ.P. 12(b)(1). The Third Circuit has identified two types of challenges to the court's jurisdiction under Rule 12(b)(1): 1) facial challenges which are based on the legal sufficiency of the claim as pleaded on the face of the complaint, and 2) factual challenges which are based on the sufficiency of jurisdictional facts. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). An attack on subject matter jurisdiction that is based on a lack of administrative exhaustion is a factual challenge, not a facial one. See e.g., Eladawey v. FRA., Civ. 13-2976 (ES), 2014 WL 4610644, at *2 (D.N.J. Sept. 12, 2014); J.H. & S.N. ex rel. J.H. v. Egg Harbor Twp. Bd. of Educ., Civ. 08-488 (JBS), 2009 WL 1322514, at *2 (D.N.J. May 11, 2009).
" In reviewing a factual attack [as here] the court may consider evidence outside the pleadings." Gould Elecs., Inc. v. United States,220 F.3d 169, 176 (3d Cir. 2000). " In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, Inc.,227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen,
549 F.2d at 891). " [T]he burden of proving that jurisdiction exists lies with the plaintiff, and 'the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Harris v. Kellogg Brown & ...